ELR Citation: ELR 20920
No(s). 85-3739 (9th Cir. Jun 18, 1986)

The court holds that the National Marine Fisheries Service (NMFS) violated the National Environmental Policy Act (NEPA) by failing to adequately explain its decision not to prepare an environmental impact statement (EIS) prior to issuing a Marine Mammal Protection Act (MMPA) §104 permit for the capture of 100 orca whales, and NEPA's EIS requirement does not conflict with the MMPA's time limitations. The court first holds that plaintiffs' action is not barred by the MMPA's 60-day statute of limitations. Section 104(d)(6) applies only to challenges to the substantive terms and conditions of MMPA permits, whereas plaintiffs allege NEPA procedural violations. The court holds that it has jurisdiction to hear plaintiffs' action under the combined operation of the federal question statute, NEPA, and the Administrative Procedure Act, but declines to decide whether NEPA provides an independent jurisdictional basis. The court next rules that NEPA's EIS requirement does not irreconcilably conflict with §104(d) of the MMPA. Even assuming that §104(d) requires that NMFS grant or deny a permit within 90 days of publication of notice and the preparation of an EIS takes approximately 360 days, NMFS could withhold publication of notice of a permit application while an EIS is being prepared. Congress intended that NEPA apply to the fullest extent possible and that no agency use a narrow construction of its statutory authority to avoid complying with the Act. Congress also gave NMFS flexibility, since the publication of notice is within the agency's control. The court observes that a fine line exists between applying NEPA to the fullest extent possible and rendering another statute's provisions superfluous, but concludes that its interpretation is consistent with the MMPA's goal to protect marine mammals.

The court holds that NMFS unreasonably decided not to prepare an EIS. Although NMFS claims the issuance of the permit falls within the Council on Environmental Quality's definition of a categorical exclusion for which no environmental assessment or EIS is required, the agency did not address the applicability of the exclusion in its report on the permit application. Moreover, the agency's bald assertion that issuance of the permit is not a major federal action significantly affecting the environment is not a sufficient explanation for the failure to prepare an EIS. The court disagrees, however, with the district court's conclusion that NMFS must prepare an EIS, remanding the case for NMFS to consider NEPA's requirements and provide a reasoned explanation of its decision.

[The lower court decision is published at 15 ELR 20167.]

Counsel for Plaintiffs-Appellees
Lauri J. Adams
Sierra Club Legal Defense Fund, Inc.
419 6th St., Suite 321, Juneau AK 99801
(907) 586-2751

Counsel for Defendants-Appellants
Eileen Sobeck
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Before Skopil and Henderson, JJ.